Opt-Out
To date, the last opt-out was Wisconsin in June 2005. Fourteen states have opted out of the federal requirement that a nurse anesthetist administer anesthesia under the supervision of the operating practitioner or anesthesiologist who is immediately available if needed. The list includes: Alaska, Idaho, Iowa, Kansas, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Dakota, Washington and Wisconsin.

Nurse Anesthetist Scope of Practice
California — The California Society of Anesthesiologists (CSA) challenged the legality of the nursing board’s statement allowing nurse anesthetists to practice independently and to perform acute and chronic pain management procedures. CSA contends that the statement is an “underground” regulation that was not adopted in accordance with the Administrative Procedure Act. The lawsuit seeks a declaratory ruling that the statement is unenforceable and seeks an injunction prohibiting the expanded scope of practice unless the rules are adopted after public hearings and survive judicial review. The nursing board removed the statement from its Web site; however, it is believed that the board will propose regulations that mirror the statement.

Connecticut — Connecticut law currently requires advanced practice registered nurses (APRNs) to work in collaboration with a physician. Nurse anesthetists who prescribe and administer medical therapeutics during surgery may only do so if the physician who is medically directing the prescriptive activity is physically present. H.B. 7161 would remove both requirements to allow APRNs to work collaboratively with health care providers, which include audiologists, chiropractors, dentists, dental hygienists, podiatrists, radiographers, radiologic technologists, respiratory care practitioners and speech pathologists. Passed Committee on Public Health.

Illinois — Amendments to H.B. 119 would rewrite the nursing statutes in order to remove physician involvement and grant prescriptive authority to nurse anesthetists for Schedule II-V controlled substances. A written collaborative agreement would no longer be required for advanced practice nurses (APNs) — including nurse anesthetists — who practice in and are credentialed and privileged by an accredited facility. The scope of practice of an APN would include diagnosis, ordering diagnostic and therapeutic tests and procedures, interpreting and using the results of such tests and procedures, and providing palliative and end-of-life care. APNs would be required to verbally identify themselves as APNs, including specialty certification, to each patient.

Louisiana — Following up on the March 2007 “State Beat” article www.ASAhq.org/Newsletters/2007/03-07/stateBeat03_07.html, the Louisiana Supreme Court denied the nursing board’s petition to review the Court of Appeal decision that the board’s “opinion” constitutes a rule and that the nursing board circumvented the rule-making process by establishing scope of practice via an advisory opinion.

In the interim, legislation (H.B. 684) has been introduced that would expand nurse anesthetist scope of practice to perform procedures, including, but not limited to, those involving the injection of local anesthetics, steroids and analgesics for pain management purposes under the direction and supervision of a physician. The procedures for pain management purposes include, but are not limited to, peripheral nerve blocks, epidural injections and spinal facet joint injections when the registered nurse anesthetist can document education, training and experience in performing such procedures. The language mirrors the advisory opinion issued by the Louisiana State Board of Nursing. The performance of interventional pain management procedures by nurse anesthetists has already been addressed by the Louisiana State Board of Medical Examiners. In 2006, the medical board issued an advisory opinion stating that nurse anesthetists could provide anesthetics for acute pain associated with surgery, but procedures for interventional pain management purposes constitutes the practice of medicine and can only be performed by a physician.

Massachusetts — S.B. 1236 would expand APN scope of practice. Existing law requires scope of practice regulations promulgated by the nursing board to be made in conjunction with the medical board. This bill would remove the medical board from this process; therefore, the nursing board could unilaterally delete the requirements of physician supervision or medical direction.

Missouri — H.B. 190 would allow APRNs who practice under a collaborative agreement to prescribe Schedule II-V controlled substances pursuant to delegatory authority. Nurse anesthetists currently provide anesthesia services without a collaborative practice arrangement provided the nurse is under the supervision of an anesthesiologist or other physician, dentist or podiatrist who is immediately available if needed.

New York — A. 2744/S. 4456 would require nurse anesthetists in a hospital or ambulatory surgical center (ASC) to administer anesthesia under the supervision of an anesthesiologist who is immediately available, operating physician who is physically present or dentist, oral surgeon or podiatrist who is physically present and authorized to administer anesthesia. In the office, the anesthesia component of the medical or dental procedure would be supervised by an anesthesiologist, physician, dentist or podiatrist qualified to supervise and who is physically present and available to immediately diagnose and treat the patient. Supervision would mean that the physician, dentist, oral surgeon or podiatrist performs a pre-anesthetic examination and evaluation; prescribes the anesthesia; ensures that a qualified practitioner participates; remains physically present during the entire perioperative period and immediately available for diagnosis, treatment and management of anesthesia-related complications or emergencies; and ensures the provision of indicated post-anesthesia care. A student nurse anesthetist could administer anesthesia under the direct personal supervision of a nurse anesthetist who is supervised by an anesthesiologist.

A.B. 5201/S.B. 2467 would codify into statute nurse anesthetist scope of practice, which is currently only found in the hospital and ASC regulations. Their scope of practice would include anesthetic induction, maintenance, emergence, postanesthesia care and pain management in collaboration with a physician and pursuant to a written practice agreement and practice protocol. Nurse anesthetists who successfully complete an anesthesia program, including an appropriate pharmacology component (or its equivalent), could prescribe drugs, devices and anesthetic agents. The practice protocol would reflect current accepted medical and nursing practice. Physicians would not enter into practice agreements with more than four nurse anesthetists who are not located on the same physical premises as the collaborating physician.

Pennsylvania — Under H.B. 1256, nurse anesthetists would practice in collaboration with a physician or dentist. When the operating or anesthesia team consists entirely of nonphysicians, an anesthesiologist or consulting physician of the nurse anesthetist’s choice would be available to the nurse by physical presence or electronic communication. Student nurse anesthetists could administer anesthesia under the direction of the chief or director of anesthesia services, anesthesiologist or certified registered nurse anesthetist. Graduate nurse anesthetists could administer anesthesia under the direction of the chief or director of anesthesia services, anesthesiologist or certified registered nurse anesthetist.

Utah — As introduced, S.B. 45 would have removed physician oversight and granted prescriptive authority to nurse anesthetists who met certain requirements. The Utah Society of Anesthesiologists and Utah Medical Association worked with the sponsor to delete such sections from the bill. As a result, the sponsor amended the bill to retain physician oversight. The amendment also classifies nurse anesthetists as APRNs but does not grant prescriptive authority. Enacted.

Wisconsin — Immediately following Governor Jim Doyle’s opt-out, the Wisconsin Society of Anesthesiologists (WSA) challenged its validity by petitioning the medical board for a declaratory ruling that Wisconsin law requires physician supervision of nurse anesthetists. An administrative law judge recently issued a proposed decision and order regarding WSA’s petition. The judge’s recommendation, which is not binding at this time, would require physician supervision and direction of nurse anesthetists. The proposed recommendation, however, would allow nurse anesthetists who received a certificate to prescribe (APN prescriber) to work in a collaborative relationship with a physician. WSA has filed documents with the court objecting to the judge’s recommendations. WSA contends that while Wisconsin law allows those individuals holding such certificate to prescribe (APNP-certified registered nurse anesthetist) in collaboration with a physician, this law does not extend to the administration of anesthesia. Collaboration applies only to prescriptive authority. Once the judge reviews the objections and issues a final proposed decision, the medical board will issue a binding final decision and order. In addition to the nurses, the podiatrists and podiatric board support the proposed recommendations.

Office-Based Anesthesia
Twenty-two states currently regulate office-based surgery via statute, regulation or guideline. Proposed office-based surgery regulations are before the state medical boards in Arizona, Indiana and South Carolina.

New York — A.B. 6827 would require physicians who perform office surgery to disclose to their patients the type/frequency of procedures conducted in the office in the previous three years, credentials of surgical staff, physician’s experience with adverse events, procedures to handle emergencies and malpractice record. Such information would be provided to the Department of Health in order to promulgate regulations necessary to avoid adverse patient events. Such information would be provided in writing and orally during in-office consultation not less than 30 days prior to the scheduled surgery.

Tennessee — H.B. 1056 would require that the medical board identify the parameters to be used in determining those Level III procedures that may be performed in an office and the age and risk classification criteria of the patients eligible for Level III office surgical procedures. Using rules established for ASCs, the medical board would promulgate rules relative to infection control, life safety, patient rights, hazardous waste, and equipment and supplies. The Department of Health would be required to provide a site survey of a physician’s office, initiate subsequent unannounced surveys and respond to patients’ complaints. The department would transmit site surveys to the medical board, but such information would remain confidential, with limited exceptions. Enacted.

Washington — The Washington Medical Quality Assurance Commission (MQAC) announced that it was considering proposed office-based surgery rules and that it planned to hold four public workshops titled “Safe and Effective Analgesia and Anesthesia Administration in Office-Based Surgical Settings.” The first three meetings were held in February and March. This subject has been a topic of discussion for the past four years. In fact MQAC has previously held public workshops, issued obstetric anesthesia guidelines and drafted rules. The Washington Society of Anesthesiologists has been an active participant throughout this process.

A significant step toward the development of these rules is legislation (H.B. 1414), which provides MQAC, the Board of Osteopathic Medicine and Surgery and the Podiatric Medical Board with the authority to adopt office-based surgery regulations. Enacted.

Physician Payment
California – The Department of Managed Health Care (DMHC) proposed a regulation that would prohibit noncontracted providers of emergency services from seeking payment from the enrollee of a managed care plan for amounts owed to the provider for the provision of covered services. The proposal also would establish a dispute resolution process for payment disputes and create new criteria to determine the definition of reasonable reimbursement. CSA and the California Medical Association have submitted written comments opposing the proposal. Similarly, legislation would prohibit hospital-based physicians from seeking payment for medically necessary covered services that have been provided to an enrollee of a managed care plan, except for allowable copayments and deductibles. S.B. 389 would also direct DMHC to implement an independent provider dispute resolution system.

Connecticut — Legislation has been introduced that would extend mandatory assignment of benefits to physicians. Existing law only extends to dentists and oral surgeons. S.B. 230 applies to both individual and group health insurance policies. Died in committee.

New Jersey — The Department of Banking and Insurance (DOBI) determined that it is reasonable for carriers to use the Medicare fee schedule as a basis for payment of out-of-network, nonhospital provider claims provided that certain conditions are met. DOBI recognizes, however, that Medicare’s fee schedule is lower than those of the Prevailing Healthcare Charges System used by some insurers in the commercial health insurance market. Therefore DOBI issued a proposal that would require insurance carriers to pay no less than 150 percent of the Resource-Based Relative Value Scale amount. Due to the amount of comments received and complexity of this issue, DOBI’s commissioner repealed the proposal but stated that DOBI may take action on this issue in the future.

North Carolina — H.B. 447 would prohibit a facility-based (ASC or hospital) physician or health care provider from balance billing a covered person if the physician or health care provider accepts the usual and customary rate under the health benefit plan. A facility-based physician or health care provider includes anesthesiologists, radiologists, pathologists, neonatologists, emergency department physicians or providers to whom the facility has granted clinical privileges and who provides services under those clinical privileges. Died in committee.

Anesthesiologist Assistants (AAs)
AA licensure legislation has been introduced in North Carolina and Texas.

North Carolina — H.B. 1492 would license AAs in order to provide anesthesia services under the direct supervision of an anesthesiologist. The supervising anesthesiologist would be actively engaged in clinical practice and immediately available on site to provide assistance to the AA. Anesthesiologists would supervise no more than two AAs at one time; however, such limitation would not restrict the number of other qualified anesthesia service providers an anesthesiologist may concurrently supervise. The same supervision ratio would apply to student AAs. After January 1, 2010, the Board of Medicine could amend the supervision ratio to allow an anesthesiologist to supervise up to four licensed AAs concurrently. The board at that time could also amend the supervision limitations of student AAs so that requirements for student AAs and student nurse anesthetists would be similar. Finally, student AAs would be prohibited from using the terms “intern,” “resident” or “fellow.” Passed Senate.

Ohio — Reversing the lower court’s decision, the Ohio Supreme Court held that while Ohio statutes permit AAs to carry out epidural and spinal anesthetic procedures, such procedures must be requested by and performed under the direction of a supervising anesthesiologist who is physically present in the room. The issue before the court was the definition of “assist.” The court ultimately rejected the medical board’s argument that the Ohio Legislature intended “assist” to have its dictionary meaning of “to help” or “to aid” and applied its technical meaning in the field of anesthesiology, “to carry out.”

Texas — Legislation (H.B. 3313) would have authorized AAs to assist the supervising anesthesiologist in developing and implementing an anesthesia care plan for a patient. AAs would have practiced only under the direct supervision of a board-certified anesthesiologist who is physically present or immediately available. The supervising anesthesiologist would have supervised no more than four AAs; an AA could have more than one supervising anesthesiologist. AAs would have been prohibited from referring to their license as “board-certified” or any other terminology that implies the AA is a physician. Similar to North Carolina legislation, student AAs would have been prohibited from using the terms “intern,” “resident” or “fellow.” Died in committee.

Lisa Percy, J.D., manages state affairs for ASA’s Office of Governmental and Legal Affairs in Washington, D.C.